Chapter 6 : Legal Framework - PBMR

CHAPTER 6: LEGAL FRAMEWORK
6.1 INTERDEPARTMENTAL COLLABORATION
At the outset of the EIA, the Department of Environmental Affairs and Tourism (DEAT) as
the lead authority on environmental matters, and the National Nuclear Regulator (NNR)
agreed to work in close collaboration regarding the assessment of nuclear related matters
associated with the project. As a result, the scoping report reflects numerous issues
relating to nuclear safety that were raised by interested and affected parties (I&APs).
Such issues will be dealt with in terms of the National Nuclear Regulator Act (Act No. 47 of
1999). The National Nuclear Regulator (NNR) nuclear installation licence process is
detailed below.
The National Nuclear Regulator Act (Act No. 47 of 1999) authorises the NNR to:
Provide for the protection of persons, property and the environment against nuclear
damage through the establishment of safety and regulatory practices.
These safety standard and regulatory practices typically include risk criteria addressing risk
to public and workers, radiation dose limits due to normal operation, fundamental safety
principles including as-low-as-reasonably-achievable (ALARA) and defence-in-depth,
general safety principles related to international standards and requirements for
emergency planning.
Subject to the NNR board’s approval, the Chief Executive Officer (CEO) may:
refuse an application for a nuclear installation licence and must provide the applicant
with the reasons for the refusal in writing; or
grant an application for a nuclear installation licence, subject to such conditions.
In order to give practical impetus to the process described above a cooperative
governance agreement was entered into between the DEAT and the NNR. The process
described in this agreement will be followed to address radiological and nuclear safety
related issues during this EIA.
6.2 STATUTORY FRAMEWORK
Beside the normal decision-making structures for an EIA, several other acts, regulations
and treaties apply to this particular proposed study. These include, inter alia:
6.2.1 ACTS
The Constitution of South Africa (Act 108 of 1996);
National Environmental Management Act (Act 107 of 1998);
National Heritage Resources Act (Act 25 of 1999);

National Roads Traffic Act (Act 93 of 1996);
National Water Act (Act 36 of 1998);
Occupational Health and Safety Act (Act 85 of 1993);
Physical Planning Act (Act 125 of 1991);
Promotion of Access to Information Act (Act 2 of 2000);
The Atmospheric Pollution Prevention Act (Act 45 of 1965);
The Electricity Act (Act 41 of 1987);
The Environmental Conservation Act (Act 73 of 1989);
The Hazardous Substances Act (Act 15 of 1973);
The National Nuclear Regulator Act (Act 47 of 1999);
The Nuclear Act (Act 46 of 1999);
The Seashore Act (Act 21 of 1935);
Dumping at Sea Control Act, 1980;
Air Quality Act, 2004 (in force 11/09/05);
Compensation for Occupational Injuries and Diseases Act (Act 130 of 1993);
Disaster Management Act (Act 57 of 2002);
National Building Regulations and Building Standards Act (Act 103 of 1977);
National Key Points Act (Act 102 of 1980).
6.2.2 PROVINCIAL/LOCAL LEGISLATION
Land Use Planning Ordinance (Ordinance 15 of 1985);
Local By-laws.
6.2.3 REGULATIONS
The EIA Regulations, Regulation R1182, 1183 and 1184 as published in the Government
Gazette of 5 September 1997.
6.2.4 TREATIES
National Nuclear Non-Proliferation Treaty enacted by the Nuclear Energy Act.
The Basel Convention on Transboundary Waste Transport.
6.3 NUCLEAR LICENCE PROCESS
In addition to the EIA process, the project proponent also needs nuclear installation
licences for the proposed nuclear activities.

These licences must be obtained from the National Nuclear Regulator (NNR) and are
required under the National Nuclear Regulator Act (Act 47 of 1999). The act states that no
person may site, construct, operate, decontaminate or decommission a nuclear
installation, except under the authority of a nuclear installation licence. Section 21 of the
Act makes provision for persons wishing to engage in any of these activities to apply to the
(CEO) of the NNR for such a licence. It is important to note that different requirements
exist for the nuclear installation licence and the EIA process.
As is the case with the EIA process, the licence process is a sequential (staged) process.
Unlike the EIA process, the licence process is ongoing (i.e. throughout the life cycle of the
project – planning, construction, commissioning, operation / maintenance and
decommissioning).
The involvement of the public in the licence process is at the discretion of the CEO of the
NNR. In terms of the Act, the CEO of the NNR is obliged to direct the applicant for a
nuclear installation licence to serve a copy of the application upon:
every municipality affected by the application;
such other body or person as the CEO determines;
publish a copy of the application in the Government Gazette and two newspapers
circulating in the area of every such municipality.
Any person(s) who may be directly affected by the granting of a nuclear installation
licence pursuant to an application, may make representation to the NNR Board on
matters relating to radiological health, safety and environmental issues connected to the
application, within 30 days of the date of publication in the Government Gazette.
For nuclear installations and the transport of nuclear material(s), the licence process
entails the setting down of standards expressed in terms of:
the quality of engineering and operation required;
the limitation of radiation exposure to people.
The prime considerations during a good nuclear safety design are the principles of
“ALARA” (As low as reasonable achievable) and “defence-in depth”.
With regard to good nuclear safety design practice, of prime consideration are the
principles of defence-in-depth and of ensuring that risks and radiation doses to members
of the public and workers will be maintained as low as reasonably achievable (ALARA)
below the stipulated radiation dose limits.
The principle of “defence-in-depth” requires that there should be multiple layers
(structures, components, systems, procedures or a combination thereof) with overlapping
safety provisions. Accident prevention and accident mitigation are natural
consequences of the defence-in-depth principle.
Besides the normal decision-making structures for an EIA, several other approvals apply to
this particular proposed study. These steps in the approval process include:

DEAT must approve the EIA in co-operative agreement with the relevant provincial
environmental authorities.
The NNR must approve the nuclear safety aspects of the design, construction and
operation/maintenance of the plant(s) (electricity generation and fuel manufacture)
as well as the transportation of nuclear materials.
Thereafter, Cabinet must consider all of the information in the documents that result
from the above studies, and approve the construction of a demonstration module
PBMR to demonstrate the techno-economic feasibility of the technology.
After cabinet approval of this project, various permits must be applied for and issued
for land-use, emission releases, effluent disposal, conventional waste disposal and
water use.
6.4 ESKOM’S INTEGRATED STRATEGIC ELECTRICITY PROGRAMME
(ISEP)
Eskom also has responsibilities in respect of the White Paper on National Energy Policy.
Eskom uses a programme called the Integrated Strategic Electricity Programme (ISEP) to
guide their planning process.
As stated previously, the ISEP concerns supply-side and demand-side options. The PBMR is
an option for the supply-side.
ISEP is the way in which Eskom assesses by how much the demand for electricity is likely to
grow, and how best to meet and manage that demand. Long-term economic forecasts
are made and provide the framework to investigate and implement a wide range of new
supply-side and demand-side technologies.
As part of the ongoing effort to evaluate the viability of all the supply-side options, a
number of power generation technologies, which have not yet been implemented in
South Africa on a commercial basis, are being evaluated in terms of technical, socioeconomic
and environmental aspects.
6.5 AUTHORISATIONS AND PERMITS TO BE OBTAINED
Table 1 summarises the permits that may be required for the proposed project, their legal
basis and the authorities that would be required to issue them.
Table 1: Permits potentially required for the proposed project
LEGAL BASIS DEPARTMENT NATURE OF PERMIT
Environment Conservation Act,
73/1989 (sect 21,22,26 and Sept
1997 regulations)
Dept of Environmental Affairs
and Tourism
Environmental Impact
Authorisation
National Environmental
Management Act, 107 of 1998
Dept of Environmental Affairs
Environmental Impact
Authorisation: New EIA

LEGAL BASIS DEPARTMENT NATURE OF PERMIT
(sect 24) and Tourism regulations
National Water Act, 36 of 1998
Atmospheric Pollution
Prevention Act 45 of 1965
National Environmental
Management: Air Quality Act,
39 of 2004
Dept. of Water Affairs and
Forestry (DWAF), regional office
Cape Town
Dept of Environmental Affairs
and Tourism
Dept of Environmental Affairs
and Tourism
Permission to carry out “water
use” – widely defined
Noxious & Offensive gas permit:
Scheduled process under
Annexure APPA
Act promulgated regulations
not formulated
Nuclear Regulator Act 47/1999
(Sect 20(1))
Nuclear Energy Act 46/1999
(Sect 46)
Nuclear Energy Act 46/1999
(Sect 34)
Land Use Planning Ordinance
15/1985
National Nuclear Regulator
Department of Minerals and
Energy
Department of Minerals and
Energy
Western Cape Provincial Dept of
Environment & Development
Planning
Nuclear installation licence:
Authorisation for sitting,
constructing, operating,
decontaminating or
decommissioning a nuclear
installation
Dealing with nuclear waste –
permit requirement
Identified Authorizations by the
Minister
Rezoning i.t.o. 14.4(a)
Full Rezoning process
In addition to the legislation mentioned in Table 1, the Department of Minerals and Energy
has established a national policy on the management of radioactive waste, including
spent fuel.